Five Key Lessons from Abroad for the UK CMA’s Google Search Probe
In the first investigation conducted under the new ex-ante regulatory framework established by the Digital Markets, Competition and Consumers Act (DMCC), the United Kingdom’s Competition and Markets Authority (CMA) is seeking to ascertain whether Google has “strategic market status” (SMS) in the search and search-advertising-services markets. The CMA is also tasked with weighing whether ex-ante remedies are needed to address potential anticompetitive harm caused by Google’s position.
In conducting this analysis, the CMA should build on other jurisdictions’ experience. The authority must carefully distinguish between conduct that is genuinely anticompetitive and harmful to consumers and conduct that—while not anticompetitive or harmful—conflicts with the CMA’s vision of how the online search market should be structured.
In defining the boundaries between “fair” and “unfair” or “informed” and “uninformed” choices, as well as between “competitive” and “anticompetitive” conduct, the CMA confronts a pivotal question: does it seek to enable market-driven outcomes or does it intend to impose its own? While it’s likely premature to assess the effectiveness of those interventions taken by other jurisdictions, the experience to-date does offer some clues as to where the line between regulators’ ambitions and consumer interests should be drawn.